[2025] UKUT 114 (AAC)

“Exceptional circumstances”

The Cabinet Office had challenged the ICO’s finding that the present case was exceptional. The linchpin of the Tribunal’s decision, however, was the supposed “exceptional circumstances” of the case (at [45], [47]).

Any set of facts might be distinguishable from others on a particular basis, or might have features which were unique or rare. What all such scenarios had in common – as the Cabinet Office explained in its evidence and submissions – was that a safe space was needed for candid discussion and consideration. The officials whose candour would be chilled by disclosure had no way of knowing whether any given situation was to be regarded as “exceptional” either for the reasons relied on in this case or otherwise. That was particularly so where the circumstances which were said to make this case exceptional occurred months after the relevant discussions took place and could hardly have been foreseen at the time. It followed that in any case, however pedestrian, officials would reasonably fear that future events might happen which could, on the Tribunal’s logic, retroactively render the circumstances exceptional and therefore the discussions susceptible to disclosure; as a result, they would be deterred from contributing freely and frankly. That very uncertainty was what gave rise to a chilling effect, with the attendant prejudice to the conduct of public affairs.

However, the Tribunal in this case did not explain key stages of its reasoning:

first, it did not explain why it reached the view, despite the Cabinet Office’s submissions and evidence, that the facts were “exceptional”. There was no explanation of what that description meant, or in what other circumstances it would or might be satisfied. What appeared exceptional to one person might, to someone else with different experience and perspective, seem run of the mill

secondly, it did not explain why those exceptional facts (which were, on their face, irrelevant) affected the public interest balancing test in relation to the FOIA request under consideration

thirdly, and in light of the uncertainty around its own subjective view that the facts were “exceptional”, it did not explain why that exceptionality would avoid the chilling effect warned about in the Cabinet Office’s evidence and submissions.